Pubdate: Fri, 20 Oct 2017
Source: Globe and Mail (Canada)
Copyright: 2017 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Colin Perkel
Page: A11

MARIJUANA CO-OP OWNER CHALLENGES LAW

Lawyer argues charges laid against Marek Stupak, who operated the
Social Collective in Toronto, should be thrown out

The law under which the owner of two medical marijuana dispensaries
was charged last year was unconstitutional because a valid program
making medicinal pot readily available did not exist at the time, an
Ontario court heard on Thursday.

As a result, charges of possession for the purposes of trafficking and
having proceeds of crime laid against Marek (Mark) Stupak should be
thrown out, his lawyer Alan Young said.

Mr. Stupak, 44, operated two "medical marijuana compassion clubs"
known as the Social Collective in Toronto.

Police charged him in May, 2016, under the Controlled Drugs and
Substance Act as part of a series of city-wide raids in an operation
known as Project Claudia.

Mr. Young cited a 2000 ruling from Ontario's top court that Parliament
could not criminalize marijuana use without a program to make
medicinal marijuana available to ill patients who needed it.

Other courts, he said, regularly struck down restrictions on
reasonable access to the drug.

However, Ottawa failed to ensure that access, and dispensaries such as
Mr. Stupak's sprang up to fill the gap, Mr. Young said.

Project Claudia made a "concerted effort" to close down all the
dispensaries in Toronto, but police messed up because they had no law
to back their enforcement action at the time of the raids, Mr. Young
said.

In October, 2013, Ottawa began shutting down an existing but
criticized program under which patients could grow their own pot or
have someone grow it for them for free.

The program was replaced in April, 2014, with one in which growers
were licensed to grow and supply medical marijuana to patients.

However, the new scheme also ran afoul of the courts, Mr. Young said.
As a result, no valid medical program was in effect between October,
2013, and August, 2016, when the government brought in new rules for
medical marijuana, court heard.

"The government dropped the ball and there was a gap," Mr. Young told
Superior Court Justice Heather McArthur.

"There was a two-year period where patients were left in the dark and
in the cold."

The gap, he said, left patients and their suppliers exposed to
criminal sanction.

Additionally, if a patient has a right to use and to access the drug,
the government must make clear that those who distribute to them are
exempt as well, Mr. Young said.

"When Project Claudia was initiated, medical patients were in a limbo
period in which it was unclear how they were going to access (medical
marijuana)," Mr. Young said.

For his part, Crown lawyer David Morlog argued Mr. Stupak was looking
for an "extremely broad" remedy given that the rules in place at the
time were in fact constitutional.

"The applicant is seeking retroactive absolution for drug
trafficking," Mr. Morlog said.

Mr. Stupak, Mr. Morlog said, is relying on a misinterpretation of a
key Federal Court decision in February, 2016.

In that ruling, a judge found the medical marijuana system
unconstitutional, but gave the government six months to fix the issue.

In his submissions, Mr. Young argued that evidence as to what exactly
Mr. Stupak was doing with his dispensaries is not necessary unless the
law is upheld.

However, Justice McArthur wondered whether she should know
more.

"I strongly suggest it's not necessary," Mr. Young replied, but
Justice McArthur said she would think about whether such evidence
would be helpful to her ruling on the validity of the law.

Five other individuals alleged to be owners of medical marijuana
dispensaries have joined the challenge but are awaiting its outcome.
Mr. Young said thousands of other cases could be affected as well.

Justice McArthur put the matter over until Nov. 6, when the parties
will discuss whether she needs to hear evidence about Mr. Stupak's
dealings.
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MAP posted-by: Matt